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Rinky D/O Arvindbahi S Varma(Wife … vs Ravi Narendra Padia on 29 November, 2019

C/AO/108/2019 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/APPEAL FROM ORDER NO. 108 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE DR.JUSTICE A. P. THAKER

1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy No
of the judgment ?

4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?

RINKY D/O ARVINDBAHI S VARMA(WIFE OF RAVI PADIA)
Versus
RAVI NARENDRA PADIA

Appearance:
MR VIRAT G POPAT(3710) for the Appellant(s) No. 1
MR JAL UNWALA SR. ADVOCATE WITH S D MANSURI(7509) for the
Respondent(s) No. 1

CORAM: HONOURABLE DR.JUSTICE A. P. THAKER

Date : 29/11/2019

ORAL JUDGMENT

1. The appellant, who is original plaintiff, has preferred the
present Appeal from Order against the order dated 8th March 2019
passed below Exhibit 01 in the proceedings of Civil Misc. Application
No.23 of 2019 by the learned Principal Judge, Family Court, Surat,
whereby the plaint is ordered to be returned to the appellant for its

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presentation before the proper Court having jurisdiction.

2. Brief facts of the present case are as under:-

2.1 That on 17th September 2013, the appellant married with
respondent herein at Ahmedabad, Gujarat and on 14th December
2016, out of the said wedlock, one daughter namely Kayra was born
at United States of America (USA). That since, there was differences
between the respondent and the appellant, they have decided to
separate and with mutual consent, they have executed an
agreement dated 15th December 2017 wherein it was decided that
the respondent herein had relinquished his right over the child. It is
alleged that the said agreement clearly indicates that the child was
residing in India with the appellant at Surat. It is further alleged that
respondent herein had tricked the appellant to travel to USA and
upon such request of the respondent, the appellant travelled and
reached to the USA on 4th December 2018 along with the child. It is
further alleged that the respondent snatched away the minor child
from the legal custody of the appellant. It is alleged that the
appellant tried her best by calling police on 911 at the relevant time
to get the custody of minor child, however, the same was of no
avail and the respondent has taken away the custody of the minor
child and she had to return to India on 10th January 2019. It is
alleged that in the meantime, on 30th January 2019, the Court of
Circuit Judge, Florida rejected an application for custody of minor
child on the ground that the child has resided in India for one year
preceding the date of application along with the mother. It is further
alleged that, therefore, the appellant had preferred Civil Misc.
Application No.23 of 2019 under the provisions of Section 10 read
with Sections 9 and Section25 of the Guardians and SectionWards Act, 1890
(hereinafter be referred to as “the Act”) before the learned Principal
Judge, Family Court at Surat. It is alleged that the Family Court has
rejected the said application on the ground that the learned Judge of
the Family Court, Surat has no jurisdiction to entertain the

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application as the marriage of the parties was solemnized at
Ahmedabad and both the parties were residing at Ahmedabad after
marriage and the agreement of divorce with mutual consent took
place in Ahmedabad.

2.2 On the aforesaid factual aspects, the appellant has prayed to
quash and set aside the impugned order dated 8th March 2019
passed by the learned Principal Judge, Family Court, Surat below
Exhibit 01 in Civil Misc. Application No.23 of 2019 and to direct the
Family Court to proceed with the matter.

3. Heard Mr.Virat Popat, learned advocate for the appellant and
Mr.Jal Unwala, learned senior advocate with Mr.S. D. Mansur,
learned advocate for the respondent at length. Perused the
materials placed on record.

4. Mr.Virat Popat, learned advocate for the appellant has
submitted the same facts which are narrated in the memo of appeal
and has submitted that even on reading of the agreement, the
residence of the appellant is shown at Surat and, therefore, the
minor child was residing with the appellant at Surat, at the relevant
time, and, therefore, the Family Court at Surat has jurisdiction to
entertain the application filed by the appellant herein. According to
him, under Section 9 of the Act, the Family Court, Surat has
jurisdiction to entertain the application filed by the appellant. It is
submitted that the Florida Court has also held that the native of the
child is stated to be India and, therefore, Indian Court has
jurisdiction to entertain the petition. While referring to the impugned
order, learned advocate for the appellant has submitted that the
Court has not decided the application on merits and without
properly appreciating the agreement, has committed serious error
of law in passing the order in returning the petition for presentation
before the appropriate Court. He has submitted that the Family

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C/AO/108/2019 JUDGMENT

Court has not considered the provisions of Section 9 of the Act. He
has prayed to allow the present Appeal from Order.

5. Per contra, Mr.Jal Unwala, learned senior advocate with Mr.S.
D. Mansur, learned advocate for the respondent has submitted that
the following questions are required to be addressed:-

(i) Where is the child residing as on date?
(ii) Where was the child born?

(iii) Where was the parties resided together?

(iv) Intention of the party?

5.1 According to Mr.Unwala, learned senior advocate, the minor

child was born in USA and citizen of USA and at the time, when the
minor child was in the custody of the respondent, she was in USA
and, therefore, it can be said that the child was residing, lastly, in
USA. According to him, the agreement for divorce dated 15th
December 2017 was executed between the parties. But, even,
thereafter, the mother and minor child went to Florida on 4th
December 2018 and they stayed with husband even after the
agreement of divorce. While referring to the order of the Florida
Court at page No.34, Mr.Unwala, learned senior advocate has
submitted that the Florida Court has not exercised its jurisdiction, as
the time period necessary for residence of the children as per the
Florida Law, was not satisfied and due to lack of jurisdiction.
According to him, the proper Court is Florida Court where another
petition has been filed by the wife which is pending and it is fixed on
10th December 2019. While relying on the following decisions,
Mr.Unwala, learned senior advocate has submitted that when there
is provision of law, the Court where the child, lastly, resided, has
jurisdiction to entertain the petition and in this case, admittedly, the
child was in USA at the time of taking custody by the husband.

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C/AO/108/2019 JUDGMENT

(i) Smt. Surinder Kaur Sandhu Vs. Harbax Singh
Sandhu and another, (1984) 3 SCC 698;

(ii) V. Ravi Chandran Vs. Union of India and others,
(2010) 1 SCC 174

5.2 Mr.Unwala, learned senior advocate has submitted that in the
present case, intention of the party is that the matter to be
considered where the child was born. He has urged to dismiss the
present appeal as the jurisdiction lies with the Florida Court.

6. In rejoinder, Mr.Popat, learned advocate for the appellant has
submitted that as per the observation of the Florida Court, the
Indian Court has jurisdiction and that fact has not been challenged
by the respondent herein. According to him, as the husband –
respondent has relinquished his right of custody of the minor child
in the divorce agreement, taking the custody of the child by him is
illegal, can be agitated by the appellant in the Indian Court.
Regarding decisions relied upon by Mr.Unwala, learned senior
advocate, Mr.Popat, learned advocate has submitted that in
respective cases, the child was shifted to one country to another
country and the order passed by the Foreign Court is prior to that
and, therefore, the Indian Court has accepted those decisions and
has directed to handover the custody of the minor as per the special
facts and circumstances of the case. According to him, the decision
in the case of V. Ravi Chandran Vs. Union of India and others,
(2010) 1 SCC 174 is rather helpful to the appellant. He has stated
that both the decisions are on peculiar facts of that case, whereas,
in the present case, the father has relinquished his right of custody
of the child and, therefore, snatching away the custody of the child
in USA, does not give any jurisdiction to the Florida Court and the
jurisdiction of the Indian Courts not barred.

7. In the case of Smt. Surinder Kaur Sandhu (supra), the

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C/AO/108/2019 JUDGMENT

Apex Court has held and observed that the modern theory of
Conflict of Laws recognizes and, in any event, prefers the
jurisdiction of the State which has the most intimate contact with
the issues arising in the case. Therefore, in the matters relating to
matrimony and custody, the law of that case must govern which has
the closest concern with the well-being of the marriage. Ordinarily,
jurisdiction must follow upon functional lines and is not attracted by
the operation or creation of fortuitous circumstances such as the
circumstance as to whether the child, whose custody is in issue, is
brought or for the time being lodged.

8. In the case of V. Ravi Chandran (supra), while referring to
the earlier judgments of the Indian Courts as well as Apex Court, the
Apex Court has held that the Court in the country to which the child
has been removed must first consider the question whether the
court could conduct an elaborate enquiry on the question of custody
or by dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was
removed and all aspects relating to the child’s welfare be
investigated in a court in his own country. Should the court take a
view that an elaborate enquiry is necessary, obviously, the court is
bound to consider the welfare and happiness of the child as the
paramount consideration and go into all relevant aspects of welfare
of the child including stability and security, loving and
understanding care and guidance and full development of the
child’s character, personality and talents. While doing so, the order
of a foreign count as to his custody may be given due weight; the
weight and persuasive effect f a foreign judgment must depend on
the circumstances of each case. It is further held and observed
therein that however, in a case where the court decides to exercise
its jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the court in the native country
which has the closest concern and the most intimate contact with

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C/AO/108/2019 JUDGMENT

the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in
his own native country as that could be in the best interests of the
child.

9. Considering the contentions of both the sides and the
materials placed on record, certain facts are admitted facts which
are as under:-

           (i)            The   parties    have      married     on      17th
September 2013.

(ii) The daughter Kayra was born on 14th

December 2016 at USA. There is mutual agreement
for dissolution of marriage executed at Ahmedabad
on 15th December 2017 wherein the address of the
wife is shown at Surat. There is no dispute
regarding the said agreement.

           (iii)          On 4th December 2018, the appellant
along with the minor child went to the USA.

(iv) The custody of the child was taken by the
respondent at USA.

(v) The wife filed the petition before the

Florida Court which has rejected the same for lack
of jurisdiction holding that the India, where the
child resided for the year preceding the filing of the
petition for dissolution and the motion for child
pick-up order, is the home State of the child for
jurisdictional purpose under the UCCJEA i.e. Florida
Uniform Child Custody Jurisdiction Act.

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         C/AO/108/2019                                                 JUDGMENT

(vi) The appellant herein has preferred Civil

Misc. Application No.23 of 2019 before the Family
Court, Surat under the provisions of Sections 9 and
Section25 of the Guardians and SectionWards Act.

            (vii)       The Family Court, Surat has passed the
impugned order returning the plaint for its
presentation before the proper Court having

jurisdiction and held that the Surat Court has no
jurisdiction.

10. The only question in this matter is regarding jurisdiction of the
Court under Section 9 of the Act. Section 9 of the Act reads as
follows:-

       9. Court having                  jurisdiction         to      entertain
application

(1) If the application is with respect to the

guardianship of the person of the minor, it shall be
made to the District Court having jurisdiction in the
place where the minor ordinarily resides.

(2) If the application is with respect to the
guardianship of the property of the minor, it may be
made either to the District Court having jurisdiction in
the place where the minor ordinarily resides, or to a
District Court having jurisdiction in a place where he
has property.

(3) If an application with respect to the guardianship of
the property of a minor is made to a District Court
other than that having jurisdiction in the place where
the minor ordinarily resides, the court may return the
application if in its opinion the application would be
disposed of more justly or conveniently by any other
District Court having jurisdiction

11. Now, considering the provisions made in Section 9 of the Act,

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C/AO/108/2019 JUDGMENT

it is the Court, in which jurisdiction, the child was, ordinarily,
resided. Now, in this case, it is an admitted fact that the agreement
of dissolution was entered into between the parties at Ahmedabad
and in that agreement, the address of the appellant is shown as
Surat. It shows that when the agreement was signed at Ahmedabad,
the wife was residing at Surat with the child. It appears from the
agreement dated 15th December 2017 that, the husband has
relinquished his right of custody of the minor child and only has
sought for visitation right. It also appears from the record that when
the wife went to USA, the husband has taken away the custody of
the minor child and wife has moved Florida Court for immediate
custody of the child which has not entertained by the Florida Court.
Thus, the action of the husband in taking away the custody of the
child in USA will not divest the jurisdiction of the Indian Court as per
the agreement as, lastly, the child was residing at Surat. As such,
considering the factual aspects of this case, the jurisdiction of the
Family Court at Surat is not divested and the Family Court at Surat
has jurisdiction to entertain the petition filed by the wife under
Section 9 read with Section 25 of the Act.

12. On perusal of the impugned order, it appears that the Family
Court has not considered the fact that at the time of execution of
the agreement, the wife was residing at Surat along with the minor
child.

13. It appears from the impugned order that the observation of
the Family Court that at the time of proceedings, the minor child
was residing in USA is not in consonance with the settled principles
of law as the action of the husband in snatching away the minor
child in USA cannot be a ground to hold that the Surat Court has no
jurisdiction, in the facts of the case that there was agreement
between the parties that the custody of the minor child was given to
the mother, who was residing at Surat. Therefore, the impugned

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order of the Family Court is not tenable in the eyes of law and is
required to be interfered with.

14. In view of the aforesaid foregoing reasons, the Appeal from
Order is allowed. The impugned order dated 8th March 2019 passed
below Exhibit 01 in Civil Misc. Application No.23 of 2019 by the
learned Principal Judge, Family Court, Surat is hereby quashed and
set aside. The Family Court, Surat is directed to entertain the
application filed by the appellant - wife under Section 9 read with
Section 25 of the Act and decide and dispose of the same in
accordance with law.

Sd/-

(A. P. THAKER, J)
V.R. PANCHAL

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